Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-07
Last-Modified: 1999/06/15

15. Counsel for the Appellant coupled with the contention of
`Act of State' also that of `obedience to superior orders.'
He contended that it was the oath of allegiance taken by his
client on joining the SS organization, and the compulsion of
Hitler's order to destroy the Jews completely - an order
which was passed on to him through that organization's chain
of command and was given to him by his superior - by which
he was guided in acting as he did.  For the present we shall
deal with this submission only from the legal point of view;
our principal object will be to distinguish it from the `Act
of State' contention on the one hand, and to clarify its
meaning and significance from the viewpoint of international
law on the other:

(a) The defence of `obedience to superior orders' differs
from that of `Acts of State' in the following three
respects: (1) While the latter defence means that the
criminal act cannot be imputed to the person who committed
it, but only to the state, the former signifies that he may
indeed be regarded, even legally, as the doer of the act,
but that the fact of his having acted under the compulsion
of an order of the competent authority, to whom he was
directly subordinated, is his justification.

(2) While the `Act of State' theory regards the performance
of the mission in question as being of this character only
because the supreme authority in the state ("the Heads of
State" etc.) commanded or authorized it (Kelsen op. cit., p.
104), this does not necessarily apply to the theory of
`superior orders,' which justifies the criminal act solely
because the immediate superior  of the perpetrator of the
act ordered him to carry it out, and the latter was bound to
obey such order.

(3) `Act of State' does not necessarily mean that the person
who performed the mission acted under a ministerial
direction, which left him no margin of discretion, but it is
rather the fact that the act performed was within the scope
of the authority given which suffices to vest it with that
character.  On the other hand, the defence that the act was
done in obedience to superior orders means - ex hypothesi -
that the person who performed it had no alternative - either
by law or by virtue of the regulations of the disciplinary
body (army, etc.) of which he was a member - but to carry
out the order he received from his superior.

It should be noted that we have not as yet dealt with the
legal value of the defence in question, but have only dwelt
on the differences existing between it and the other defence
advanced.  The third difference makes it clear that the
`superior orders' doctrine cannot, by its very nature, avail
the Appellant because, when we come to analyse the facts, it
will be found that within the framework of the order to
carry out the Final Solution, the Appellant acted
independently, and even exceeded the tasks assigned to him
through the service channels of the official chain of
command (see paragraphs 16-18 of Part III of this Judgment.)

(b) The question whether the public interest requires that
the defence of `superior orders' be recognized, raises the
following two difficulties.  On the one hand, the purpose of
ensuring good order in the disciplinary body to which the
accused belongs necessitates that he should not disobey his
superior officer and should not stop to ponder the legality
of the command he received, lest the object for which he was
ordered to act be foiled.  On the other hand, the damage
that will be caused to the public by the offence involved in
carrying out the order demands that he should not obey it
automatically, but should do so only if reasonably convinced
that the order was lawful.  These two conflicting aspects
have been aptly summarized by Stephen in his History of
Criminal Law in England (vol. 1, p. 206):

"The inconvenience of being subject to two jurisdictions,
the sympathies of which are not unlikely to be opposed to
each other, is an inevitable consequence of the double
necessity of preserving, on the one hand, the supremacy of
the law, and on the other, the discipline of the army."

There is also the personal problem of the soldier himself
when placed in the dilemma that, if he disobeys the order of
his commanding officer, and it later turns out to have been
lawful, he will be brought before a court-martial, whereas
if he obeys it, and it later transpires that this was not
the case, he will be liable to punishment under the general
criminal law.  This difficulty is likely to be grave, in
view of the fact that the simple soldier is not always
capable of deciding on the spot whether the order given was
lawful or not:

"It is not easy for any man, still less for the poorly
educated soldier, to decide whether an order addressed to
him is reasonably necessary for quelling a disturbance... To
make matters worse for him, he is subject to two different
jurisdictions" (Glanville Williams, The Criminal Law etc.,
2nd ed., p. 297).

All three difficulties show that the problem whether it is
proper to recognize this defence depends on the answer to
the question if, and to what extent, the mental state of the
accused at the time of the offence ought to be taken into
consideration, namely, the fact that he did not then know
that the order he carried out was contrary to the law.  The
via media solution provided by the general Criminal Law of
this country - in accordance with the tendency of English
law (ibid., pp. 297, 298) - is that such defence is
admissible where there was obedience to an order not
manifestly unlawful (section 19(b) of the Criminal Code
Ordinance 1936; see also the passages from Israeli cases,
quoted in paragraph 219 of the Judgment).  However, in
Section 8 of the Nazis and Nazi Collaborators (Punishment)
Law, the legislature has provided that the defence of
"superior orders" - and the same applies to the defences of
"constraint" and "necessity" - shall not be admissible with
respect to the offences covered by the Law; while in Section
11, the legislature has provided that it is permissible, in
certain circumstances to consider it as a factor in
mitigation of sentence.  We certainly agree with the view of
the District Court that, even if it had to decide the case
on the basis of the provision in the general Criminal Law,
it would have had to reject that defence, not only because
the order for physical extermination was manifestly
unlawful, and also all other orders to persecute the Jews
were contrary to the "basic ideas of law and justice," but
also because the Appellant was fully conscious at the time
that he was a party to the perpetration of the most grave
and horrible crimes.  Indeed, in paragraph 221 of the
Judgment, the Court has set out the testimony of the
Appellant in which he himself admitted this fact:

"Your Honour, President of the Court, since you call upon me
to tell and give a clear answer, I must declare that I see
in this murder, in the extermination of the Jews, one of the
gravest crimes in the history of mankind."

And in answer to Judge Halevi:

"...I already at that time realized that this solution by
the use of force was something illegal, something terrible,
but to my regret, I was obliged to deal with it in matters
of transportation, because of my oath of loyalty from which
I was not released."  (Session 95, Vol. IV).

2(c) Thus far we have dwelt principally on the theoretical
aspect of the defence in question - on the distinction
between it and the `Act of State' defence, and on the
attitude adopted towards it by the legislature.  We now wish
to reply to the question as to whether the particular
attitude taken by the legislature in Section 8 of the 1950
Law which precludes the application of the `superior orders'
defence to the crimes defined in the Law, conflicts with the
principles of international law.

2(1) Our first reply to this question is that until World
War II there was no agreed rule in the law of nations, by
which recognition was given to the defence of `superior
orders,' not even with respect to the charge of committing
an act contrary to the laws of war.  See: Stone op. cit., p.
362; Schick, A.J.I.L., vol. 41, p. 793; Wright, History of
U.N. War Crimes Commission (1948), p. 274.

2The solutions given in regard to the question whether such
defence should at all be admissible - and, if so, to what
extent may be taken into account the accused's knowledge or
ignorance of the unlawful character of the order or the fact
that he was bound to know of it - have varied from state to
state.  This is not the place to deal with them at length
(see the review of Greenspan, pp. 490 ff; also Wright,
ibid., p. 281 ff).  We may, however, mention the principle
embodied in the British and American Military Codes of 1914
which laid down that a superior order shall serve as a
defence for a member of the armed forces who committed a war
crime in obedience to it, and that the commanding officer
responsible for such order shall alone be criminally
responsible for the former's act.  This is the principle
known as respondeat superior, and it conflicted with the
provisions of the general criminal law which was then in
force in those countries and was, moreover, not in harmony
with the decisions of their courts.  In 1944 Glueck (see his
book, pp. 149-150) wrote that the legal position on this
issue had not yet crystallized there.  It is true that a
little later the above military codes were amended, and the
principle was laid down that a superior order, under which a
member of the armed forces acted in contravening the laws of
war, would not confer upon him absolute immunity from
punishment, but that the court could take such defence into
consideration, if the order was not obviously unlawful
(British amendment).  It is also pertinent to add that the
provision in German law of the last century, which the Nazis
maintained intact, imposed liability for a breach of the
criminal law committed by a person, while acting in
obedience to an order given him by his superior, on the
latter alone, but at the same time it specified that the
first-mentioned person shall be punished as an accomplice,
if he knew that the order concerned an act that aimed at a
crime or an offence under the general or the military law.
(Article 47(2) of the German Military Law of Criminal
Jurisdiction of 1882, cited in paragraph 220 of the
Judgment).  That provision appears to have prescribed a sort
of subjective test as to the admissibility of the `superior
orders' defence, but in its judgment in the Llandovery
Castle case, in which it tried the charge of a war crime
committed in World War I, the Supreme Court of Germany in
Leipzig held, in 1921, that the accused shall be deemed to
have had knowledge of the unlawful character of the order he
carried out

"if such an order is universally known to everybody,
including also the accused, to be without any doubt whatever
against the law... In the present case it was perfectly
clear to the accused that killing defenceless people in the
lifeboats could be nothing but a breach of law." (Quoted
from the judgment in U.S. v. Ohlendorf L.R.T.W.C., vol. 4,
p. 484).

We have made passing reference to this test because it, too,
entails that full criminal intent be attributed to the
Appellant even had he not admitted this fact in his
evidence.  But our main purpose here is to make it clear
that in the past no principle recognizing such defence
became crystallized in international law.

2(2) There was thus no departure from the provisions of
international law - and this will be our second reply to the
above question - when in Article 8 of the Charter of the
International Military Tribunal it was provided, with
respect to the crimes defined therein, that the fact that
the accused acted pursuant to an order of a superior shall
not free him from responsibility, but the Tribunal may take
it into consideration in mitigation of punishment, should it
determine that justice so requires.  It must be understood
that this express provision was designed to defeat in
advance any attempt by the Nazi criminals to resort to the
respondeat superior plea to the point of carrying it ad
absurdum, in view of the Fuehrerprinzip which, in the last
analysis, made it possible to trace to Hitler alone the
source of the satanic orders which resulted in the
perpetration of the horrendous Nazi crimes, including that
of the `Final Solution':

"Had their contention that they acted upon the orders of
Hitler been accepted as a valid defence, the rule respondeat
superior would have served merely as a reductio ad absurdum
for the purpose of frustrating the law.  Upon such a theory
it would have been impossible to punish anyone for the
crimes of this war.  All the perpetrators charged with
offenses might have made the same defense, and the arch-
criminal Hitler, by committing suicide, made it impossible
to inflict punishment upon this earth" (Finch, A.J.I.L.,
vol. 41, p. 21).

See also the observation of Justice Jackson in the report he
submitted to the President of the United States in June 1945
(quoted by Wright, ibid., p. 274):

"Society as modernly organized cannot tolerate so broad an
arch of official irresponsibility."

Here, therefore, is a weighty reason for repudiating the
above defence as one which relieves from responsibility in
cases of this kind.  The other reason - that the very
commission of the crimes in question necessarily points to
the existence of criminal intent in the perpetrator -
emerges from the language used by the Nuremberg Tribunal in
confirming that Article 8 is part of the law of nations:

"The provisions of this article are in conformity with the
law of all nations.  That a soldier was ordered to kill or
torture in violation of the international law of war has
never been recognized as a defense to such acts of
brutality, though, as the Charter here provides, the order
may be urged in mitigation of the punishment.  The true
test, which is found in varying degrees in the criminal law
of most nations, is not the existence of the order, but
whether moral choice was in fact possible." (Trial of Major
War Criminals (Nuremberg 1947) vol.1, p. 224).

The above principle, too, is one of the `Nuremberg
Principles' which were affirmed by the United Nations
Assembly resolution of 11.12.46 and have become the legacy
of civilized countries.  If this is so, it must again be
concluded that the provisions in sections 8 and 11 of the
Law of 1950 are in conformity with international law.

2(d) The last point on this subject with which it is
necessary to deal - one touching on the third aspect of the
general problem presented above - pertains to the statement
at the end of the passage just cited from the Nuremberg
judgment.  It was there pointed out that the true test was
not whether a superior order existed, but "whether moral
choice was in fact possible."  In other words, the mere
defence of obeying a superior order - as distinct from the
defence that he could not avoid committing the crime because
he had no "moral choice" to pursue another course - will not
avail the accused.  The Tribunal did not specify what it
meant by the expression "moral choice."  It may well be,
however, that it had in mind the consideration of
circumstances which placed the accused under the threat of
having to pay with his life in the event of his failure to
obey the criminal order (see Greenspan, p. 493, especially
note 334; Levontin, Myth of International Security, pp. 260-
261).  If this interpretation be correct - and we express no
opinion on this point - then it must be understood that the
Tribunal recognized that a defence of `constraint' or
`necessity' might be advanced.  As stated, the application
of these defences as grounds for relief from responsibility
in respect of the crimes defined in the Law of 1950 has been
excluded by section 11 thereof.  But even if the Law would
have permitted the accused to set up the defence that in
carrying out the order to commit the crime he was acting in
circumstances of `constraint' or `necessity,' he could not
have done so successfully unless the following two facts had
been proved: (1) that the danger to his life was imminent;
(2) that he carried out the criminal assignment out of a
desire to save his own life and because he found no other
possibility of doing so.  The American Tribunal IIA which
applied Control Commission Law No. 10 also insisted on the
necessity of proving these two facts (U.S. v. Ohlendorf
L.R.T.W.C., vol. 4, p. 480):

"The threat, however, must be imminent, real and
inevitable."

"The test to be applied is whether the subordinate acted
under coercion or whether he himself approved of the
principle involved in the order.  If the second proposition
be true, the plea of superior orders fails... When the will
of the doer merges with the will of the superior in the
execution of the illegal act, the doer may not plead duress
under superior orders."

As will be seen below, neither of the said facts has been
proved in this case.  But we stress, in particular, the
failure to prove the second fact, because each of the said
two defences goes to the motive that prompted the Accused to
carry out the criminal act - the motive to save his own life
- and also because the District Court relied in the main on
its finding that the Appellant performed the order of
extermination at all times con amore, that is to say, with
genuine zeal and devotion to that objective.  We shall also
justify this finding of the Court when we come to examine
the factual contentions of Counsel for the Appellant.

16. We have yet to reply briefly to the contention of
Counsel for the Appellant that the Judges of the District
Court - and he advanced the same contention with reference
to the Judges of this Court - were psychologically incapable
of judging the case of his client objectively.

Like the District Court, we, too, reject this contention,
and the reply it gave in so doing is also our reply:

"As for the Accused's fear concerning the background against
which this trial will be heard we can only repeat the
principles which apply to every judicial system worthy of
the name; that indeed while on the bench a judge does not
cease to be flesh and blood, possessed of emotions and
impulses. However he is required by law to subdue these
emotions and impulses, for otherwise a judge will never be
fit to consider a criminal charge which arouses feelings of
revulsion, such as treason, murder or any other grave crime.
It is true that the memory of the Holocaust shocks every Jew
to the depth of his being, but when this case is brought
before us we are obliged to overcome these emotions while
sitting in judgment. This duty we shall fulfil" (Session No.
6, Decision No. 3, Vol. I).

The learned Judges did fulfil their duty - fully and to the
end.

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